As a law professor who teaches civil procedure, I want to explain the due process problems with the U.S. government’s proposed settlement of the Cobell lawsuit. The lawsuit was originally filed as a class action on behalf of Indian owners of trust lands seeking an accounting from the U.S. government. Under the federal rules of civil procedure, this type of lawsuit asking for an action – the accounting – is the type of class action where you are bound by the judgment. When a class action is filed requesting money damages as a remedy, due process kicks in at the highest levels and every person has the right to “opt-out” and file their own lawsuit. Everything has been twisted up in the Cobell Proposed Settlement (CPS).

The CPS has three levels of payments to individuals for this accounting action to total $1.4 billion. First, the four named plaintiffs are set to receive $15 million. Second, the Historical Class is tied up with the accounting claim and not allowed to opt-out and will only receive $1,000 for all of their claims dating back to the General Allotment Act of 1887. This is clearly an injustice where the Historical Class is not allowed to opt-out and file their own lawsuit if they want to. This violates the Federal Rules of Civil Procedure Rule 23(b) which mandates money damage class actions provide opt-out provisions. This turns the tables on the original filed lawsuit and binds those with the longest claims to a payment that cannot possibly represent what is owed to them or what should be the damages for mismanagement of their lands.

Third, the Trust Administration Class gets paid last, if there is money left from the $1.4 billion, with a bottom line payment of $500 and then a formula kicks in. This last group is considered a “money damages” group and so they can decide to opt-out and file their own claim. The Historical Class can be counted here for an additional $500 (totaling a whopping $1,500 for 120 years of mismanagement). The formula that may add to the $500 looks to the past balances of the Individual Indian Money (IIM) account over ten years and uses that as the amount to be compensated. So, if the U.S. government really mismanaged your account and put in zero dollars, then under the formula – you get $500 plus zero dollars. In other words, those who have already received the most in their accounts are set to receive more through the formula.

My proposal would be to put all class members into the first group – yes, everyone should get $15 million just like the four named plaintiffs if we are going to be fair about this. Secondly, the U.S. government admits no wrongdoing whatsoever in this proposed settlement. Several times the U.S. Secretary of the Interior has been held in contempt by the federal district court and yet, the settlement does not acknowledge any wrongdoing on the part of the U.S. government. There isn’t one word of apology. As originally filed, the complaint estimated over $48 billion was owed to the entire plaintiff class. The first part of the settlement amounts to a measly $1.4 billion with the majority going to the four named plaintiffs and their attorneys.

Part two of the settlement contains a $2 billion fund administered by Indian Country’s friend, the Department of the Interior, to purchase from individual Indians’ their fractionated land interests and transfers them to the tribal government. Under the proposed settlement, Interior has ten (10) years to use up the fund or it reverts back to the U.S. Treasury. Yes, you read that right – there is no incentive for Interior to use the fund if it can save the U.S. government money by simply not doing anything.

Side issues involved with the $2 billion are that individual Indians can’t use these funds to consolidate family interests at all. No new trust land is being added here. The real motivation is to consolidate land in the tribal government to help the BIA in their record-keeping, so that there are less fractionated undivided interests in trust land to administer. At a recent panel I attended at the 35th Annual Indian Law conference, the representative from Interior stated that no probate interests were involved with the settlement. Therefore, if you are waiting on the BIA to probate your interests, you are out of luck to be included in the proposed settlement. Furthermore, Interior has a list of some 60,000 Indians under the category “whereabouts unknown.” Under the proposed settlement, Interior will spend five years doing radio, tv and newspaper ads to find them. If they cannot be located, then Interior will use funds from the $2 billion to purchase their interests and give them to the tribal governments. The amounts the whereabouts unknown folks will have credited after disenfranchisement will then be put in new IIM accounts by Interior – quite a solution. We can’t find you so we’ll sell your land back to the Tribes and your heirs may get the money after a protracted probate process.

Part three of the settlement is to create an education fund. When I went to Stanford, I remember my father telling me to take our treaty to the financial aid office and insist that we were guaranteed an education under the treaties we signed with the U.S. government. Well, in the proposed settlement the U.S. government is going to seed an education fund at $2.4 million and give rebates from the $2 billion land consolidation in part two to fill up that fund. As a colleague recently pointed out, if 240 Indian students receive funds of $10,000 each the education fund will be exhausted. Again, isn’t this already the responsibility of the U.S. government?

Based on the above, I call the Cobell Proposed Settlement a scam. As a Dakota woman, a lawyer, and a law professor, I am appalled that the U.S. government would attempt to push this through the U.S. Congress. The U.S. government has imposed the trust relationship on Indian peoples in mid-North America. Surely, the highest fiduciary duty is owed to individual Indians whose lands are managed by the U.S. government – higher than the duty owed to politically-organized tribal governments. At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. Here in the latest round, Interior wants to sneak through this proposed settlement and stop the accounting, the claims for mismanagement, and the rights of those who are most at the mercy of the U.S. trust responsibility. This is unconscionable, immoral, and would be on par with the bleakest eras of U.S. Indian policy such as removal, assimilation, and termination. We need the eagle whistleblowers to come forth in Indian Country to stop this great wrong from being perpetrated by the U.S. government.

Angelique EagleWoman (Wambdi A. WasteWin) is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota; an attorney licensed in DC, OK, ND, and SD; and a law professor teaching Civil Procedure and Native American Law.